STATE OF NEW JERSEY VS. GABRIEL GARCIA (16-12-1529, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0549-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GABRIEL GARCIA, a/k/a GABRIEL H.
GARCIA, GABRIEL H. CHIRIBOGA,
GABRIEL G. CHIRBOGA, and
GABRIEL H. GARCIACHIRIBOGA,

Defendant-Appellant.

Argued September 10, 2019 – Decided September 27, 2019

Before Judges Yannotti, Currier, and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 16-12-1529.

Marcia H. Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Marcia H. Blum, of counsel
and on the brief).

Ednin D. Martinez, Assistant Prosecutor, argued the
cause for respondent (Esther Suarez, Hudson County
 Prosecutor, attorney; Jaimee M. Chasmer, Assistant
Prosecutor, on the brief).

PER CURIAM

Defendant Gabriel Garcia appeals from his convictions and sentence

following a jury trial. After a review of the contentions in light of the record

and applicable principles of law, we affirm the convictions. However, because

we find counts two and three should merge with count one, we remand solely

for correction of the amended judgment of conviction (JOC).

Defendant was charged in an indictment with second-degree aggravated

assault (count one), N.J.S.A. 2C:12-1(b)(1); third-degree possession of a

weapon with an unlawful purpose (count two), N.J.S.A. 2C:39-4(d); fourth-

degree unlawful possession of a weapon (count three), N.J.S.A. 2C:39-5(d); and

fourth-degree aggravated assault (count four), N.J.S.A. 2C:12-1(b)(3). Count

four was dismissed before trial. A jury found defendant guilty of all charges.

At the sentencing hearing, the trial judge merged the second-degree and

fourth-degree aggravated assault convictions 1 and sentenced defendant to a term

of seven years with an eighty-five percent period of parole ineligibility under

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also merged

1
Because the fourth-degree charge was dismissed before trial, the judge
corrected this error in an amended JOC.
A-0549-17T4
2
the third-degree possession of a weapon with an unlawful purpose and the

fourth-degree unlawful possession of a weapon convictions, and sentenced

defendant to a term of three years to run concurrently.

We derive the facts from the evidence presented at trial. At around

midnight on the night of these events, defendant drove to his mother's home in

Jersey City to pick up some relatives. Upon his arrival, defendant double-parked

outside the house and honked his horn "about three times" to alert his uncle he

had arrived.

At the same time, Raymond and Jennifer Urbanski, and Jennifer's brother

Jason were conversing on the same street a few doors away from the Urbanski

home. Raymond testified that when he heard defendant beeping his horn, he got

off his stoop and gestured with his hands for defendant to "keep it down;"

however, defendant "continued blasting the horn." Raymond assumed defendant

could not see him and he approached defendant's vehicle. In response, defendant

got out of the vehicle, brandishing a knife.

Raymond felt "immediately threatened" and "went into defense mode."

He and defendant began a verbal altercation while "walking down the block a

few doors down." Raymond thought he had "to get [the] knife from [defendant]"

but before he could, Raymond saw defendant raise the hand holding the knife.

A-0549-17T4
3
As Raymond put his hand up to block defendant, he stated defendant sliced him

with the knife on his finger and face, from the corner of his eye to the side of

his mouth. Raymond said he was "soaked" in blood. He denied having any

weapons with him and he did not recall ever striking defendant.

As a result of the slashing, Raymond said he "lost skin on [his] finger"

that "had to be grafted from the palm of [his] hand." He also suffered nerve

damage, a fracture on his pinky finger, and needed twenty-six stitches on his

face.

After defendant stabbed Raymond, Jennifer tried to insert herself between

the two men. As she did so, defendant brandished the knife at her and told her

to take Raymond away. Defendant then got into his vehicle and left.

The Jersey City police and Detective Janixza Domenech arrived at the

scene five to seven minutes later. Domenech testified Raymond was bleeding

from the left side of his face as she interviewed him. She described seeing a

deep laceration on Raymond's face from his left ear lobe to the corner of his

mouth.

Shortly after the interview, defendant returned to the scene in his car and

was arrested by the police. Domenech briefly interacted with defendant and did

not note any injuries on him. However, when she was shown a photograph of

A-0549-17T4
4
defendant taken later that night, she saw a "minor injury" underneath defendant's

hairline.2 Jennifer also identified defendant as Raymond's attacker during a

subsequent show up procedure.

During her investigation of the incident, Domenech made observations,

canvassed the scene, and interviewed witnesses. She testified that she observed

blood stains on the driver's side door and the rear passenger door of defendant's

car and on the sidewalk in front of a home next to the Urbanski's. She canvassed

the scene for "additional weapons, cameras, [and] witnesses." She stated she

did not recover any weapons and did not interview any witnesses other than

Jennifer, because no other witnesses were found.

Prior to the start of trial, defendant advised the court he intended to assert

a claim of self-defense. He also testified about the events that evening.

Defendant stated that after he honked his horn, Raymond and two other men

came to his car window. When Raymond began "cursing" at defendant and

asking why he was beeping the horn, defendant responded that he was waiting

for his uncle to come out of the house. After Raymond struck the roof of

2
At trial, Domenech identified a photograph of defendant taken at the time of
his arrest. The photograph was admitted into evidence.

A-0549-17T4
5
defendant's vehicle and continued cursing at him, defendant got out of his

vehicle.

Defendant stated that Raymond "swung" at him with his fist. He stated

he kept backing away because he saw one of the other men had "something in

his hand." When Raymond and the others "rush[ed]" at defendant, he ran away.

The men "chas[ed]" defendant back to his vehicle, where one of the men

"stabbed" the vehicle's rear tires. Defendant stated he tried to get back into his

car but Raymond, who had a bottle in his hand, punched him.

Defendant stated he was able to run away and pull a box cutter out of his

pocket.3 He told Raymond and the other men to "back up" and stated he did not

want any problems. However, the men charged defendant, so he ran around his

car to the front of his mother's house. He stated the men continued to pursue

him, and they were armed with a bottle, a knife, and a stick.

At this point, defendant testified, several of his relatives came out of the

house, including his mother, stepfather, sister and uncle. When defendant's

mother tried to stop Raymond and the other men, they pushed her out of the way.

Defendant again told the three men to "stop," but one of them hit him with a

3
Defendant, a mechanic, testified he owned a box cutter to open boxes for his
job.
A-0549-17T4
6
"bottle on the side of [his] head" and then they all came towards him. Defendant

"panicked" because the men were "all on top" of him and he brought his hand

that was holding the box cutter up, stabbing Raymond.

After the stabbing, defendant ran to his car. As he drove away, he stated

the men were "still running towards [him]" and punching the windows of the

vehicle. One of his relatives told him later that after defendant left, Raymond

told defendant's family members that he was "going to murder one of [them]."

Defendant called the police and explained what had occurred, and then

contacted his friend, Jonathan Colon, a Jersey City police officer. Colon advised

defendant to stay at the scene. Defendant remained parked on the block but did

not return to his mother's house because he was "scared for [his] life."

Shortly thereafter, defendant saw a police car travelling towards the scene

and he decided to follow it there. Once defendant parked, Raymond came to the

window of the car "and started . . . swinging his fist and catching [defendant] in

the face." An officer arrested defendant and when he tried to explain what had

transpired, a police officer told him to "shut up." Later, defendant was taken to

a hospital, where he received six staples to his head.4

4
Defendant acknowledged on cross-examination that the medical records
revealed he had received four surgical staples.
A-0549-17T4
7
 Defendant's mother testified that she heard a commotion outside her

house. When she went outside, she saw four men armed with bottles, knives

and sticks around her son. When she tried to get between them, they attacked

and pushed her. She then saw one of the men hit her son on his head with a

bottle. She said her son tried to defend himself and "slashed the person in the

face."

When defendant's stepfather heard screams, he also ran out of the house

where he saw defendant surrounded by five people; two were holding knives,

one had a bat, and a fourth had a bottle. He stated he saw one of the men strike

defendant's head with a bottle.

Defendant's family members testified that they tried to talk to the police

officers, but the police ignored them. None of them tried to talk to the detective,

although defendant's mother stated she was aware that the detective was

conducting an investigation. The family said the police "just wouldn't listen,"

told the family members to "back off," and the female detective "never asked

[them] anything." The State did not cross-examine defendant's family members

on their interaction with the police officers. Additionally, defendant's sister

stated she showed a police officer a video of Raymond threatening her family;

however, the officer did not ask for a copy of the video. Although defendant's

A-0549-17T4
8
sister did not see the stabbing, she stated she saw Raymond punch defendant

twice in the head and face after defendant returned to the scene.

On the final day of trial, after defendant had testified, defense counsel

sought to introduce a video Jorge Salgado 5 had taken of defendant's mother and

stepfather attempting to talk to the police about Raymond's threat to "murder

them." Defense counsel advised she had only learned of the videotape's

existence the night before.

The State objected to the introduction of the video because of its untimely

production. Defense counsel argued the video was important because it would

corroborate the testimony she expected her remaining witnesses to give that the

police officers ignored defendant's family members. The trial judge denied the

introduction of the videotape at that juncture because the defense witnesses had

not yet testified, and, therefore, the State had not attempted to impeach their

allegations that the police had ignored them. The judge told defendant that he

could not introduce the video unless the State impeached his mother's or

stepfather's version of events.

5
Salgado lived with defendant's mother and other relatives in the home. It is
unclear from the record if he was also a relative.
A-0549-17T4
9
 Following the testimony of defendant's witnesses, the judge conducted a

hearing on the video outside the presence of the jury. As the video was played,

Salgado identified who was speaking at certain points in the footage as the

speaker's faces were not visible. He identified defendant's mother and stepfather

as the speakers in the video who were explaining to the officers that Raymond

threatened them and that they possessed an additional video (taken by

defendant's sister) that captured the threats. In response, the officers told them

to "take [the video] to court." Additionally, at the beginning of the video, the

officers told defendant's family, "that's for court," "[t]hat's not for now," and "if

[defendant] did nothing wrong he should have stayed" at the scene of the

incident.

After seeing the video, the trial court inquired of defense counsel her

grounds for the video's admission. Defense counsel argued that Domenech

testified that no one came forward to offer themselves as witnesses of the events,

and therefore the video would rebut that testimony. The State responded that

the video was "cumulative" and "needless," and challenged its authentication

because Salgado had not established a foundation for identifying the speakers.

In denying the introduction of the video, the trial judge found it did not

meet the requirements of any hearsay exception because the State did not

A-0549-17T4
10
suggest during the cross-examination of defendant's mother or stepfather that

they had only recently fabricated their testimony about trying to speak to the

police and being rebuffed. He also noted the video showed the officers did not

tell the relatives to "go away" but told them to "take it to court."

In his closing argument, the prosecutor stated:

And then, again, the family's all outside and – and
they're supposedly out there and nobody cares what
they have to say. And his mother testifies and there was
an important little part of that testimony that I want to
emphasize to you and I think is relevant to figure out
what happened here, that the mother knew the
difference between a police officer and a detective. [6]
She knew that police officers don't have the same role,
that they get there and they help secure a scene, they do
this and that. But the detectives, the detectives are the
people who investigate, who take the witness
statements, who try to get the picture here. And she
described the person, who's Detective Domenech, who
came here and told you nobody approached her, nobody
approached her, nobody from the Garcia family as he
would have you believe approached her.

Despite the fact that she was clearly a detective she's
walking around with a notebook, she's taking notes,
she's talking to the Urbanski's, she's trying to figure out
what happened. And knowing this they still
(indiscernible) and talk to her. If this really happened
like that, you running out there for your son, you're

6
Defendant's mother testified that she knew Domenech was a detective because
she was carrying a notebook and was speaking to Jennifer. She also stated she
knew a detective conducted an investigation, which differentiated her from a
police officer.
A-0549-17T4
11
 going to tell the people, the police at the scene, the
detectives at the scene, those charged with the
investigation that, no, this -- there's something else
going on here. But she never did, she never did. And
that should rule large in your mind.

In addressing defendant's claim of self-defense, the prosecutor stated:

Again, this [sic] wounds or these actions, they were not
defensive. They were offensive. Once again, ladies
and gentlemen, this wasn't inflicted by some guy and
… on his heels with his back against the wall. This
wasn't inflicted by some guy who had nowhere else to
go and who with his head down just flings his arm up
with his blade and he just happened to take it out at that
exact moment. That's someone who went on the attack.
. . . A person cannot leave the safety of their car,
menace somebody with a knife and then claim self-
defense. A person cannot brandish a knife against
another in the presence of his wife and his family and
then claim self-defense.

A person cannot turn down routes of retreat and
then claim their actions were defensive. This was not
inadvertent or negligent or reckless or the product of
self-defense, ladies and gentlemen. That was an attack.

Following its deliberations, the jury found defendant guilty on all counts.

On August 11, 2017, the trial court held a sentencing hearing. Defendant

did not present any mitigating factors but maintained his innocence, explaining

he stabbed Raymond in self-defense, he had a wife and two children, and had a

job to support his family.

A-0549-17T4
12
 The State requested consecutive sentences on the counts and requested a

finding of aggravating factors two, the gravity and seriousness of harm inflicted

upon the victim, N.J.S.A. 2C:44-1(a)(2); three, the risk of re-offense, N.J.S.A.

2C:44-1(a)(3); six, the extent of defendant's prior criminal record 7 and the

seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44 -

1(a)(6); and nine, the need to deter defendant and others from violating the law,

N.J.S.A. 2C:44-1(a) (9). Additionally, the State asserted the only applicable

mitigating factor was factor eleven, N.J.S.A. 2C:44-1(b)(11), the resulting

hardship on defendant's family.

In its decision, the trial court found aggravating factors three, six, and nine

were applicable. For factor three, the trial court explained that "[t]his is

[defendant's] seventh indictable conviction" in thirteen years. 8 The court found

factor six applicable because of "the extent of the defendant's prior criminal

record and the seriousness of the offenses for which he has been convicted."

And for factor nine, the trial court found defendant "needs to be deterred" based

on his criminal record and because the altercation could have been avoided.

7
Defendant had previous convictions of resisting arrest, possession of an
imitation firearm for an unlawful purpose, and possession of a controlled
dangerous substance.
8
At the time of sentencing, defendant was thirty-one years old.
A-0549-17T4
13
 The court also addressed the merger of the counts. He determined the

assault conviction and the weapons charge could not be merged because: 1)

someone could "commit an aggravated assault . . . without a weapon"; and 2)

"there are different factors and different requirements and different elements of

the crime." However, the trial court merged the unlawful possession of a

weapon and possession of a weapon with an unlawful purpose counts.

Subsequently, the trial court sentenced defendant to concurrent terms of

imprisonment: seven years of imprisonment for the second-degree aggravated

assault conviction, with an eighty-five percent period of parole ineligibility

under NERA; and three years of imprisonment for the merged unlawful

possession of a weapon and possession of a weapon with an unlawful purpose

convictions.

On appeal, defendant presents the following arguments:

POINT I. THE DETECTIVE'S TESTIMONY THAT
NO ONE FROM DEFENDANT'S FAMILY CAME
FORWARD TO SPEAK TO THE POLICE AT THE
SCENE IMPLIED THAT HIS FAMILY HAD
NOTHING EXCULPATORY TO SAY AND
UNDERMINED DEFENDANT'S CLAIM AT TRIAL
THAT HE ACTED IN SELF-DEFENSE, YET THE
COURT EXCLUDED A VIDEO THAT SHOWED
DEFENDANT'S PARENTS HAD ATTEMPTED TO
SPEAK TO THE POLICE AT THE SCENE.

A-0549-17T4
14
 POINT II. IN A TROUBLING INSTANCE OF
MISCONDUCT, THE PROSECUTOR
CAPITALIZED ON THE EXCLUSION OF THE
VIDEO TO MISSTATE A SIGNIFICANT FACT
AND, ON THAT BASIS, URGE THE JURY TO
CONVICT DEFENDANT.

POINT III. THE PROSECUTOR MISSTATED THE
LAW ON SELF-DEFENSE, TELLING THE JURY
THAT BECAUSE DEFENDANT INITIALLY
"BRANDISHED" A KNIFE, HE WAS NOT
ENTITLED TO CLAIM THAT HE SUBSEQUENTLY
ACTED IN SELF-DEFENSE.

POINT IV. THE CONVICTIONS FOR POSSESSION
OF THE KNIFE, UNDER COUNTS 2 AND 3,
SHOULD HAVE MERGED WITH THE ASSAULT
UNDER COUNT 1.

POINT V. THE SENTENCE OF SEVEN YEARS, 85
PER CENT WITHOUT PAROLE, IS EXCESSIVE.

Defendant asserts that the trial judge erred in denying the introduction of

the videotape into evidence because it was proffered to support the defense

testimony refuting Domenech's statement that no one from the family came

forward to speak to the police during the investigation at the scene. Because it

could be inferred from Domenech's statement that the family had nothing

exculpatory to say or could not corroborate defendant's claim of self-defense,

defendant argues the video was needed to bolster the defense witnesses's

A-0549-17T4
15
credibility. Defendant contends the video was not hearsay or if it was, it was

admissible under N.J.R.E. 803(a)(2).

We review a trial court's evidentiary ruling for an abuse of discretion, that

is, whether "there has been a clear error of judgment." State v. Brown, 170 N.J.

138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). We will

"not substitute [our] own judgment for that of the trial court, unless 'the trial

court's ruling was so wide of the mark that a manifest denial of justice resulted.'"

Ibid.; accord State v. Prall, 231 N.J. 567, 580 (2018).

On the last day of trial, when defense counsel sought the introduction of

the videotape, she did not articulate the specific rule governing the admissibility

of the video. Neither counsel nor the judge questioned whether the videotape

was hearsay; instead, the judge, without objection, analyzed the hearsay

exceptions that might permit the introduction of the video. He determined that

the only exception that might be applicable was Rule 803(a)(2), but rejected that

rule as it did not fit in the presented circumstances.

Rule 803(a)(2) permits the admission of a prior consistent statement of a

witness if it is "consistent with the witness' testimony and is offered to rebut an

express or implied charge against the witness of recent fabrication or improper

influence or motive." Because the judge found the prosecutor had not asserted

A-0549-17T4
16
or even implied there was a recent fabrication by any of the defense witnesses ,

he concluded the defense had not met its burden to demonstrate a hearsay

exception and he denied the admission of the tape.

We disagree that the video was hearsay and therefore subject to a hearsay

exception prior to its admission into evidence. Hearsay is defined as "a

statement,9 other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E.

801(c). Here, the video was being offered by defendant to rebut Domenech's

testimony that no one from his family came forward to discuss the incident. The

video depicted family members talking to the police, contrary to the detective's

assertion. It was not offered for the truthfulness of the statements in the video,

but rather to show that those statements were made.

However, although we disagree with the judge's reasoning for the

exclusion of the video, we discern no abuse of discretion in his ruling based on

the information presented to the judge. Furthermore, defendant has not

demonstrated the exclusion of the video deprived him of a fair trial. The issue

9
Under N.J.R.E. 801(a), a "statement" can include a writing. A video is
considered a writing under N.J.R.E. 801. See State v. Sheppard, 197 N.J. Super.
411, 430-31 (Law Div. 1984); State v. Bottomly, 208 N.J. Super. 82, 86 (Law
Div. 1984). Thus, a video can be considered hearsay.
A-0549-17T4
17
before the jury was whether defendant acted in self-defense when he stabbed

Raymond. The State's and defense witnesses presented conflicting versions of

the incident.

The video did not offer any evidence to prove or disprove defendant's

theory of self-defense. It showed defendant's family fleetingly speaking with

police officers, not the detective. Defendant's mother and stepfather testified to

those conversations at trial. The failure to admit the video, when viewed in the

context of the evidence, does not support that defendant was prejudiced or

deprived of a fair trial.

We turn next to defendant's argument, first raised on appeal, of

prosecutorial misconduct during the State's summation. Defendant contends the

prosecutor "misused" the trial court's ruling excluding the video "to exhort the

jury to find [him] . . . guilty." He argues the prosecutor improperly implied that

defendant's family's failure to speak with Domenech on the night of the incident

meant defendant did not act in self-defense when he stabbed Raymond. He also

asserts the prosecutor "misle[d] the jury about the law governing the self-

defense claim," in arguing: "A person cannot brandish a knife against another in

the presence of his wife and his family and then claim self-defense."

A-0549-17T4
18
 As there was no objection to the prosecutor's remarks, we review them for

plain error. State v. Daniels, 182 N.J. 80, 95 (2004) (citing State v. Macon, 57

N.J. 325, 333 (1971)). We must determine whether the remark was improper

and, if so, whether it was "'clearly capable of producing an unjust result.'" Ibid.

(quoting R. 2:10-2).

If defense counsel does not object to the prosecutor's remarks, "the

remarks will not be deemed prejudicial" as "[t]he failure to object suggests that

defense counsel did not believe the remarks were prejudicial at the time they

were made." State v. Frost, 158 N.J. 76, 84 (1999).

In countering defense counsel's comments during her summation that the

police investigation was one-sided, the prosecutor commented on the evidence

presented to the jury. The remark that defendant's mother did not approach

Domenech was not refuted by either defendant's mother or the excluded videotape.

The tape only showed family members interacting with police officers. The

prosecutor's remark was based on reasonable inferences from the testimony

elicited at trial. Defendant's mother testified that she knew Domenech was a

detective because she was carrying a notebook and was speaking to Jennifer.

She also stated she knew detectives conducted an investigation, which

differentiated them from police officers. Thus, it was not unreasonable for the

A-0549-17T4
19
prosecutor to question defendant's mother's credibility and for the prosecutor to

comment that defendant's mother did not speak to Domenech for reasons not

favorable to defendant.

We are unpersuaded by defendant's argument that the prosecutor misled

the jury as to the law governing his self-defense claim. After describing the

severity of Raymond's injuries, the prosecutor argued they were incurred from

an offensive attack by defendant, and not from self-defense as defendant

claimed. Although the prosecutor's comment regarding brandishing a knife was

subject to several interpretations, the judge subsequently charged the jury on the

law of self-defense. In reviewing the closing argument as a whole, as we must,

we cannot conclude the comments were "so egregious" that it deprived

defendant of the "right to have a jury fairly evaluate the merits of his defense."

State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting State v. Smith, 167 N.J.

158, 181-182 (2001)).

Defendant also argues his counsel was ineffective in her arguments

regarding the videotape. We decline to address this argument as we find it more

appropriate for a post-conviction relief application, and not an issue that can be

resolved on this trial record.

A-0549-17T4
20
 We briefly address defendant's arguments regarding his sentence. He

asserts his sentence is excessive because the trial court found "the aggravating

factors . . . based on mistakes concerning the nature of [defendant's] record" and

"failed to consider an applicable mitigating factor." We affirm a sentence "as

long as the trial court properly identifies and balances aggravating and

mitigating factors that are supported by competent credible evidence in the

record." State v. Lawless, 214 N.J. 594, 606 (2013) (quoting State v. Natale,

184 N.J. 458, 489 (2005)).

To be accorded such deference, the sentencing court is required to

"identify the relevant aggravating and mitigating factors, determine which

factors are supported by a preponderance of evidence, balance the relevant

factors, and explain how it arrives at the appropriate sentence." State v.

O'Donnell, 117 N.J. 210, 215 (1989) (quoting State v. Kruse, 105 N.J. 354, 359-

60 (1987)); accord State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008);

see also N.J.S.A. 2C:43-2(e); R. 3:21-4(g). Here, we are satisfied the judge's

findings regarding the three aggravating factors are supported by the record.

As to mitigating factors, defendant did not argue any specific factor at the

sentencing hearing but defense counsel advised the judge that defendant "comes

from a great family," "has a wife and two children," and works to support them.

A-0549-17T4
21
The State mentioned that factor eleven, N.J.S.A. 2C:44-1(b)(11), the resulting

hardship on defendant's family, might be applicable.

Although the judge did not specifically reference mitigating factor eleven,

he did note the presence of defendant's wife and young children crying in the

courtroom. Mitigating factor eleven applies where "imprisonment of the

defendant would entail excessive hardship to himself or his dependents."

N.J.S.A. 2C:44–1(b)(11). However, it is clear that the mere fact that a defendant

has children does not require a trial court to find mitigating factor eleven. State

v. Dalziel, 182 N.J. 494, 505 (2005). Instead, a defendant must demonstrate that

the children are dependents who will suffer an excessive hardship if the

defendant is incarcerated. Ibid.

Here, defendant did not establish any basis for the judge to find the factor.

Defense counsel argued that defendant supported his family, but did not provide

any additional information as to whether the family would experience "excessive

hardship" from defendant's incarceration. Thus, there was not "ampl[e]"

evidence in the record supporting a finding of mitigating factor eleven. Id. at

504. In assessing the aggravating and mitigating factors, the judge found the

aggravating factors "substantially outweigh[ed]" the mitigating factors. Even if

he had considered one mitigating factor, it would not have changed the balance.

A-0549-17T4
22
 Defendant also presents an argument regarding the merger of the counts.

He asserts the second-degree assault conviction should merge with the third-

degree possession of a weapon with an unlawful purpose and fourth-degree

unlawful possession of a weapon convictions. We agree. Defendant's testimony

that he carried a box cutter for his employment as a mechanic was undisputed.

The possession of the knife itself was not unlawful. It was only unlawful

because it was used in the aggravated assault, therefore used for an unlawful

purpose.

We, therefore, remand solely for the trial court to correct the amended

JOC to reflect the merger of counts two and three into count one.

Affirmed in part, and remanded for entry of a second amended JOC. We

do not retain jurisdiction.

A-0549-17T4
23